Les McCrimmon – Waiver of Client Legal Privilege

Waiver of Client Legal
Privilege
Presented by
Prof Les McCrimmon
William Forster Chambers &
Charles Darwin University
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Focus of Discussion
• Waiver under s 122 of the ENULA (NT)
• Establishing inconsistency
• Disclosure Waiver
• Issue Waiver
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Governing Law
Evidence (National Uniform Legislation) Act (NT) s122
Waiver of client legal privilege (CLP) can occur by:
 consent (s 122(1))
 privilege holder has acted in a way that is “inconsistent with
the maintenance of the privilege” (s 122(2))
Common law principles established in Mann v Carnell (1999)
201 CLR 1 incorporated into UEA
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
ENULA (NT) s 131A
Pursuant to s 131A, Pt 3.10 or the ENULA (NT) (other than: s 123 re loss
of CLP re defendants in criminal proceedings, s 128 re privilege re selfincrimination) applies to the pre-trial stages of civil proceedings.
Includes:
• summons or subpoena
• pre-trial discovery and interrogatories
• non-party discovery
• notice to produce
• request to produce document under Pt 4.6, Div 1 (request provisions)
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Requirement of Inconsistency
Mann v Carnell (1999) 201 CLR 1 at [29] (per Gleeson CJ,
Gaudron, Gummow and Callinan JJ)
“What brings about the waiver is the inconsistency, which the courts,
where necessary informed by considerations of fairness, perceive,
between the conduct of the client and maintenance of the confidentiality;
not some overriding principle of fairness operating at large.”
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Fact Sensitive
The inquiry mandated by the ‘inconsistency principle’ in s 122(2) of the
ENULA (NT) must focus on the facts of a particular case. As the Full
Court of the Federal Court stated in Commissioner of Taxation v Rio Tinto
(2006) 151 FCR 341 at [45], “it follows that other cases in which implied
waiver has been considered provide limited guidance unless they arise
out of the same facts”.
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Express or Implied Waiver
Disclosure
Implied
Issue
State of mind
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Disclosure Waiver
Disclosure of the fact of, or even the conclusions of, legal advice will
not necessarily result in an implied waiver of client legal privilege. The
court will look at the reason for the disclosure. If the facts indicate that
the disclosing party is seeking to deploy a partial disclosure of the legal
advice for a forensic advantage, while at the same time seeking to
deny the other party an opportunity to see the full text of the privileged
communication, then such conduct will likely be held to be inconsistent
with the maintenance of the privilege within the meaning of s 122(2)
ENULA (NT): British American Tobacco v Secretary, Department of
Health and Aging (2011) 195 FCR 123 at [47], [58]; Osland v Secretary
of the Department of Justice (2008) 234 CLR 275 at [45]-[46].
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Issue Waiver
Privilege may be waived pursuant to s 122(2) ENULA (NT) where the
content of the privileged communication has been put in issue in the
proceeding by the party entitled to the privilege.
Putting the privileged communication in issue can occur in a number of
ways, for example:
• by making an assertion in the pleadings as to the state of mind of a party.
See, for example, Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27;
• by asserting in particulars provided to the other side that a party took into
account matters evidenced by privileged documents. See, for example,
Commissioner of Taxation v Rito Tinto Ltd (2006) 151 FCR 341
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Establishing Issue Waiver
“Where a party to proceedings makes an assertion as part of his case that puts the
contents of a privileged document in issue, or necessarily opens them up to
scrutiny, with the consequence that that an inconsistency arises between the
making of the assertion and the maintenance of the privilege, privilege will be
impliedly waived. It does not matter that the privilege holder did not subjectively
intend to lose the benefit of the privilege”: headnote - Commissioner of Taxation v
Rio Tinto Ltd (2006) 151 FCR 341 at [52], [68], [43].
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Proving inconsistency critical
1. The mere fact that a party raises an issue as to his or her state of mind, and the
basis for it, does not generally raise a relevant inconsistency – for example, the
assertion in a pleading that a party was mislead and the factual basis for it.
2. Nor does the mere acknowledgment by a party that privileged documents were
relevant to reaching his or her asserted state of mind generally raise a relevant
inconsistency.
3. To satisfy the test of waiver in s 122(2) ENULA (NT), it must be shown that an
inconsistency arises between the making of an assertion as to state of mind and
the maintenance of the privilege. In such a case “a court is bound to analyse the
acts or omissions of the privilege holder that are said to be inconsistent with the
maintenance of the privilege”: C of T v Rio Tinto at [45]. See also [67], [71].
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Questions
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014
Thank You/Obrigados
Prof Les McCrimmon
Ph: (08) 8982 4700
E: [email protected]
NTBA-CDU 2014 CIVIL LAW CONFERENCE, DILI, TIMOR-LESTE 10-12 JULY 2014